McGHEE & HIERS et al. v. et al. Ga. 37; LEXIS Rep. Decided HISTORY: [***1] the Court of Appeals of Georgia -v. Swift, Currie, McGhee & L.P., App. App. LEXIS (and with direction. Hawkins & Parnell, H. Lane II, E. Quick, Christopher L. Casey, appellees. Justice. All the concurring. BY: THOMPSON OPINION [**[*Thompson, to our grant of certiorari the Court of Appeals in Henry v. Currie, McGhee & Hiers, ((we called upon to resolve a question first impression in this state: Who the documents in a legal file, attorney or the client? J. a client in a Gwinnett case against Quorum Health ("by Wade Copeland. In that Copeland brought a motion for fees on behalf of Quorum Henry. & Hiers ("Currie") to the motion. one of its partners, James Jr., to handle Henry's and the fees motion in an effort to at a settlement. gist of those discussions Henry who came to believe that statements indicated [***2] the motion because he personal animosity toward Gwinnett County trial court denied Copeland's motion attorney fees on January Henry filed his own motion attorney fees against Copeland and March Henry asked to send him a memorandum McDonald's with the memorandum to provide the memorandum to Accordingly, Henry sought the the Gwinnett County case subpoena duces tecum. McDonald PPaaggee 11 2 of 59 DOCUMENTS SWIFT, CURRIE, McGHEE & HIERS et al. v. HENRY et al. S02G1248 SUPREME COURT OF GEORGIA 276 Ga. 571; 581 S.E.2d 37; 2003 Ga. LEXIS 488; 2003 Fulton County D. Rep. 1560 May 19, 2003, Decided PRIOR HISTORY: [***1] Certiorari County case against Quorum Health to the Court of Appeals of Georgia Resources ("Quorum"), which was Henry V. Swift, Currie, McGhee & represented by Wade Copeland. In that Hiers, L.L.P., 254 Ga. App. 817, 563 case, Copeland brought a motion for S.E.2d 899, 2002 Ga. App. LEXIS 423 attorney fees on behalf of Quorum (2002) against Henry. DISPOSITION: Judgment affirmed and Henry retained Swift, Currie, case remanded with direction. McGhee & Hiers ("Swift, Currie") to defend the motion. Swift, Currie appointed one of its partners, James COUNSEL: Hawkins & Parnell, H. Lane T. McDonald, Jr., to handle Henry's Young II, Debra E. LeVorse, for case. appellants. McDonald and Copeland discussed the Regina M. Quick, Christopher L. Casey, attorney fees motion in an effort to for appellees. arrive at a settlement. McDonald conveyed the gist of those discussions JUDGES: Thompson, Justice. All the to Henry who came to believe that Justices concur. Fletcher, Chief Copeland's statements indicated [***2] Justice, concurring. Copeland brought the motion because he harbored personal animosity toward OPINION BY: THOMPSON Henry. The Gwinnett County trial court ultimately denied Copeland's motion [**38] [*571] for attorney fees on January 28, 2000. Justice. However, Henry filed his own motion for attorney fees against Copeland and Pursuant to our grant of certiorari Quorum. On March 3, 2000, Henry asked to the Court of Appeals in Henry v. McDonald to sendhim amemorandum Swift, Currie, McGhee & Hiers, 254 Ga. detailing McDonald's discussions with App. 817 (563 S.E.2d 899) (2002), we Copeland. are called upon to resolve a question McDonald prepared the memorandum on of first impression in this state: Who March 8, 2000; however, McDonald owns the documents in a legal file, refused to provide the memorandum to the attorney or the client? Henry. Accordingly, Henry sought the Hue Henry, an attorney, document in the Gwinnett County case represented a client in a Gwinnett via subpoena duces tecum. McDonald Document hosted at http://www.jdsupra.com/post/documentViewer.aspx?fid=41b805bb-07ca-48ac-8333-9949557da61dto quash the subpoena. That Henry to sue McDonald and [*the Fulton County case, Henry breach of fiduciary duty and a court order to produce the responded by a motion for a protective Fulton County court granted motion for a protective Gwinnett County court McDonald's motion to quash the duces tecum. court a certificate of immediate The Court of Appeals granted application for appeal of the County decision, as well as [***3] for Court of Appeals questioned the document belonged to or Henry, but it did not that the memorandum was not to "work product" protection. [**39] Swift, Currie, McGhee supra at the Gwinnett County decision, 1 granted McDonald's for writ of certiorari. Court of Appeals held the March work product because it was after the underlying was terminated and, of litigation. of our ruling, we need not the merits of this issue. it to say that the term not be construed narrowly. is whether the document prepared with a view toward litigation, 8 Miller, Federal Practice and which could a prospective motion for litigation. [***4] issues arise in the context a discovery request brought by an party. See, e.g., Hickman v. (Ct. 91 (1947); v. Ga. ((1994); C.G.((3). discovery issues are rare it comes to matters between and client. But it is just a discovery issue which must be in this case. Boiled down to essence, the question is this: by an attorney the course of representing a client to the attorney or the client? which have considered question have given different A minority of courts have that a document belongs to the who prepared it, unless the sought by the client in with a lawsuit against the See Corrigan v. Armstrong, Schaffly, Davis & Dicus, 824 (App. BP Alaska v. Superior Court, App. 682 (App. jurisdictions employ a work product [***5] and take the position that an can raise the work product vis-a-vis the client. If the product privilege applies, the cannot compel the attorney to the document. See, e.g., BP [*Court, supra. 2 the minority view, some documents, such as and other papers by the attorney, are work "end by the Land Bank v. Intermediate Credit Bank, D. (Ga. LEXIS 2; County D. Rep. Page 2 276 571, *571; 581 S.E.2d 37, **38; 2003 Ga. LEXIS 488, ***2; 2003 Fulton County D. Rep. 1560 moved to quash the subpoena. That include a prospective motion for prompted Henry to sue McDonald and expenses of litigation. Swift, Currie in [*572] Fulton County. [***4] Ordinarily, document discovery issues arise in the context In the Fulton County case, Henry of a discovery request brought by an alleged breach of fiduciary duty and opposing party. See, e.g., Hickman v. sought a court order to produce the Taylor, 329 U.S. 495 (67 S. Ct. 385, memorandum. McDonald responded by 91 L. Ed. 451) (1947) ; McKinnon v. filing a motion for a protective Smock, 264 375 (445 S.E.2d 526) order. (1994) ; O. C. G.A. § 9-11-26 (b) (3). Document discovery issues are rare The Fulton County court granted when it comes to matters between McDonald's motion for a protective attorney and client. But it is just order. The Gwinnett County court such a discovery issue which must be denied McDonald's motion to quash the resolved in this case. Boiled down to subpoena duces tecum. Each court its essence, the question is this: issued a certificate of immediate Does a document created by an attorney review. The Court of Appeals granted in the course of representing a client Henry's application for appeal of the belong to the attorney or the client? Fulton County decision, as well as McDonald's [***3] application for Jurisdictions which have considered review of the Gwinnett County this question have given different decision. answers. A minority of courts have ruled that a document belongs to the The Court of Appeals questioned attorney who prepared it, unless the whether the document belonged to document is sought by the client in McDonald or Henry, but it did not connection with a lawsuit against the answer that question because it attorney. See Corrigan v. Armstrong, determined that the memorandum was not Teasdale, Schaffly, Davis & Dicus, 824 entitled to "work product" protection. S.W.2d 92 (Mo. App. 1992); BP Alaska [**39] Henry v. Swift, Currie, McGhee Exploration V. Superior Court, 199 & Hiers, supra at 820. Thus, it Cal. App. 3d 1240, 245 Cal.Rptr. 682 affirmed the Gwinnett County decision, (Cal.App. 1988). These jurisdictions and reversed the Fulton County often employ a work product [***5] decision. We granted McDonald's analysis and take the position that an petition for writ of certiorari. attorney can raise the work product privilege vis-a-vis the client. If the 1 The Court of Appeals held work product privilege applies, the that the March 8 memorandum was client cannot compel the attorney to not work product because it was disclose the document. See, e.g., BP prepared after the underlying Alaska Exploration v. [*573] litigation was terminated and, Superior Court, supra. therefore, was not in anticipation of litigation. In 2 Under the minority view, light of our ruling, we need not however, some documents, such as reach the merits of this issue. pleadings, wills, contracts, Suffice it to say that the term correspondence, and other papers "anticipation of litigation" made public by the attorney, are should not be construed narrowly. not considered work product. The test is whether the document These documents, deemed "end was prepared with a view toward product," are owned by the prospective litigation, Wright client. Federal Land Bank V. & Miller, Federal Practice and Federal Intermediate Credit Bank, Procedure § 2024, which could 127 F.R.D. 473, 480 (SD Miss. Document hosted at http://www.jdsupra.com/post/documentViewer.aspx?fid=41b805bb-07ca-48ac-8333-9949557da61d1989). majority of courts have ruled a document created by an attorney to the client who retained See, e.g., Resolution Trust Corp. H--, P.C., 647 (Matter of Kaleidoscope, Inc., (ND Ga. Corp. v. Proskauer, Rose, Mendelsohn 689 666 ([***6] it is presumed that a client entitled to discover any document the attorney created during the of representation. Id. However, cause to refuse discovery would where disclosure would violate attorney's duty to a third party. might also be shown where document assesses client 3 includes "tentative impressions of the legal factual issues presented in the recorded primarily for to facilitate performance of legal services entailed in that Id. at 38. The need for lawyers to be to set down their thoughts in order to assure warrants keeping documents secret from the involved.' [Sage Corp. v. Proskauer, Rose, Mendelsohn supra at much can be said for the view, we think the majority is [***7] It places burden on the attorney, the party is best able to assess the of the document. It all, attorney who the document and knows its The client, on the other who does not know what the contains, can only make a case for discovery. Id. at it would be unfair, and perhaps to put the burden on the [**more importantly, majority view fosters open and attorney-client relations. attorney's fiduciary relationship a client depends, large upon full, candid disclosure. relationship would be impaired if their clients without cause, where the were at the client's State Bar of Georgia, Advisory Opinion No. ((may the prejudice of client, client's papers as security unpaid fees). insofar as the minority employs a work product analysis, it is out of place in cases this kind. Simply put, "the work doctrine does not apply to the [***8] which a client access to documents or other things created or [*his attorney during the of the representation." Spivey Zant, 683 885 (Cir. Resolution Trust Corp. v. H--, supra. the majority view, we entitled to discover the which McDonald prepared Barring a showing by McDonald good cause to refuse access to the Henry must be given an to inspect and copy it. passing, we observe that the 8 does not record. Thus, whether good cause to be determined at this remittitur, good cause to refuse access, superior courts should the dispute via hearing and an camera inspection of the document. Ga. LEXIS 5; County D. Rep. Page 3 276 571, *573; 581 S.E.2d 37, **39; 2003 Ga. LEXIS 488, ***5; 2003 Fulton County D. Rep. 1560 1989) . unproductive, to put the burden on the client. A majority of courts have ruled that a document created by an attorney [**40] Perhaps more importantly, belongs to the client who retained the majority view fosters open and him. See, e.g., Resolution Trust Corp. forthright attorney-client relations. v. H--, P.C., 128 F.R.D. 647 (ND Tex. An attorney's fiduciary relationship 1989); Matter of Kaleidoscope, Inc., with a client depends, in large 15 BR 232 (Bankrtcy. ND Ga. 1981); measure, upon full, candid disclosure. Sage Realty Corp. v. Proskauer, Rose, That relationship would be impaired if Goetz & Mendelsohn LLP., 91 N.Y.2d 30, attorneys withheld any and all 689 N.E.2d 879, 883, 666 N.Y.S.2d 985 documents from their clients without (N.Y. 1997). [***6] Under this good cause, especially where the approach, it is presumed that a client documents were created at the client's is entitled to discover any document behest. See State Bar of Georgia, which the attorney created during the Formal Advisory Opinion No. 87-5 course of representation. Id. However, (September 26, 1988) (attorney may good cause to refuse discovery would not, to the prejudice of client, arise where disclosure would violate withhold client's papers as security an attorney's duty to a third party. for unpaid fees). Good cause might also be shown where the document assesses the client Finally, insofar as the minority himself, or includes "tentative view employs a work product analysis, preliminary impressions of the legal we think it is out of place in cases or factual issues presented in the of this kind. Simply put, "the work representation, recorded primarily for product doctrine does not apply to the the purpose of giving internal situation [***8] in which a client direction to facilitate performance of seeks access to documents or other the legal services entailed in that tangible things created or [*574] representation." Id. at amassed by his attorney during the course of the representation." Spivey 3 "'The need for lawyers to be v. Zant, 683 F.2d 881, (5th Cir. able to set down their thoughts 1982); Resolution Trust Corp. v. H--, privately in order to assure P.C., supra. effective and appropriate representation warrants keeping Adopting the majority view, we such documents secret from the hold, therefore, that Henry is client involved.' [Cit.]" presumptively entitled to discover the Realty Corp. v. Proskauer, Rose, memorandum which McDonald prepared on Goetz & Mendelsohn LLP., supra at March 8. Barring a showing by McDonald 37. of good cause to refuse access to the memorandum, Henry must be given an Although much can be said for the opportunity to inspect and copy it. minority view, we think the majority approach is [***7] better. It places In passing, we observe that the the burden on the attorney, the party March memorandum does not appear in who is best able to assess the the record. Thus, whether good cause "discoverability" of the document. It exists to refuse access the is, after all, the attorney who document cannot be determined at this possesses the document and knows its juncture. Upon remittitur, should contents. The client, on the other McDonald assert good cause to refuse hand, who does not know what the the superior courts should document contains, can only make a resolve the dispute via hearing and an general case for discovery. Id. at 36. in camera inspection of the document. Thus, it would be unfair, and perhaps Document hosted at http://www.jdsupra.com/post/documentViewer.aspx?fid=41b805bb-07ca-48ac-8333-9949557da61djudgment of the Court of Appeals different and the case is remanded for proceedings not inconsistent this opinion. and case remanded direction. Justices BY: FLETCHER CONCUR Fletcher, [***9] Justice, I generally agree with the opinion, I write separately identify a few of the issues that arise on remand, or in future First, an attorney could have a claim of work product protection his client in a document that between the client and the Second, I believe whether client has been charged for the of the document should be a factor in deciding whether client owns the document. Third, document at issue in this case memorializes what may be as compromise negotiations therefore, would be inadmissible O.C.G.A. On remand, the document is inadmissible O.C.G.A. if so, it is nonetheless discoverable. 1 generally O.C.G.A. ((1). Ga. LEXIS 8; County D. Rep. Page 4 276 571, *574; 581 S.E.2d 37, **40; 2003 Ga. LEXIS 488, ***8; 2003 Fulton County D. Rep. 1560 The judgment of the Court of Appeals valid claim of work product protection is affirmed, albeit on different against his client in a document that grounds, and the case is remanded for was prepared in anticipation of further proceedings not inconsistent litigation between the client and the with this opinion. attorney. Second, I believe whether the client has been charged for the Judgment affirmed and case remanded creation of the document should be a with direction. All the Justices significant factor in deciding whether concur. the client owns the document. Third, the document at issue in this case CONCUR BY: FLETCHER apparently memorializes what may be described as compromise negotiations and, therefore, would be inadmissible under O.C.G.A. § 24-3-37. On remand, [***9] Chief Justice, the trial court should consider concurring. whether the document is inadmissible under O.C.G.A. § 24-3-37 and, if so, Although I generally agree with the if it is nonetheless discoverable. majority's opinion, I write separately to identify a few of the issues that 1 See generally O.C.G.A. § may arise on remand, or in future 9-11-26 (b) (1) cases. First, an attorney could have a Document hosted at http://www.jdsupra.com/post/documentViewer.aspx?fid=41b805bb-07ca-48ac-8333-9949557da61d

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